House of Commons Copyright Act Review Committee Tables Report

June 3, 2019

The House of Commons Standing Committee on Industry, Science and Technology (INDU) today presented its Sixteenth Report in the House of Commons, on the Statutory Review of the Copyright Act with 36 recommendations for consideration by the House or the Government.

Section 92 of the Copyright Act requires that the Act must be reviewed every five years by a parliamentary committee. In December 2017, the House of Commons designated its Standing Committee on Industry, Science and Technology to conduct the review. The Committee held 52 meetings, heard 263 witnesses, collected 192 briefs, and received more than 6,000 emails and other correspondence.

Among the themes and topics heard by the Committee were:

• Protection of traditional and cultural expressions
• Term extension
• Computer-generated works
• Artist’s resale rights
• Fair dealing
• Safe harbour provisions
• Disabilities
• Online piracy
• Copyright Board
• Statutory review requirements

In addition to the 36 recommendations from the committee, the report also contains a dissenting opinion from the Conservative Party and a supplementary opinion from the New Democratic Party.

Recommendations

Recommendation 1

That the Government of Canada introduce legislation to repeal section 92 of the Copyright Act in order to remove the requirement to conduct a five-year review of this Act.

Recommendation 2

That the Government of Canada simplify the wording and the structure of the Copyright Act.

Recommendation 3

That the Government of Canada establish a Research Chair on Remuneration and Business Models for Creators and Creative Industries in the Digital Economy as well as a Research Chair on the Economics of Copyright.

Recommendation 4

That the Government of Canada mandate Statistics Canada to develop consistent indicators and authoritative data on the economic impacts of copyright legislation in Canada, notably to determine its effects on the remuneration of Canadian creators and the revenues of Canadian creative industries.

Recommendation 5

That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:

• The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;
• The participation of Indigenous groups in the development of national and international intellectual property law;
• The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions, including but not limited to:
  • Creating an Indigenous Art Registry;
  • Establishing an organization dedicated to protecting and advocating for the interests of Indigenous creators; and
  • Granting Indigenous peoples the authority to manage traditional arts and cultural expressions, notably through the insertion of a non-derogation clause in the Copyright Act.

Recommendation 6

That, in the event that the term of copyright is extended, the Government of Canada consider amending the Copyright Act to ensure that copyright in a work cannot be enforced beyond the current term unless the alleged infringement occurred after the registration of the work.

Recommendation 7

That the Government of Canada introduce legislation amending the Copyright Act to provide that a reversion of copyright under section 14(1) of the Act cannot take effect earlier than 10 years following the registration of a notification to exercise the reversion.

Recommendation 8

That the Government of Canada introduce legislation amending the Copyright Act to provide creators a non-assignable right to terminate any transfer of an exclusive right no earlier than 25 years after the execution of the transfer, and that this termination right extinguish itself five years after it becomes available, take effect only five years after the creator notifies their intent to exercise the right, and that the notice be subject to registration.

Recommendation 9

That the Government of Canada consult with provincial and territorial governments, Indigenous groups, and other stakeholders to explore the costs and benefits of implementing a national artist’s resale right, and report on the matter to the House of Commons Standing Committee on Industry, Science and Technology within three years.

Recommendation 10

That the Government of Canada consider amending the Copyright Act to remove the words “created after June 7, 1988,” from section 3(1)(g) of this Act, with no retroactive effect and providing stakeholders with a significant transitional period.

Recommendation 11

That the Government of Canada improve Crown copyright management policies and practices by adopting open licences in line with the open government and data governance agenda, with respect to any work prepared and published:

• By or under the direction or control of a Canadian government; and
• In the public interest and for the purpose of public use, education, research, or information.

That the Government of Canada introduce legislation amending the Copyright Act to provide that no Canadian government or person authorized by a Canadian government infringe copyright when committing an act, either:

• Under statutory authority; or
• For the purpose of national security, public safety, or public health.

In the context of Crown copyright and acts done under statutory authority or for the purpose of national security, public safety, or public health, that the Government of Canada consider implementing measures to compensate rightsholders for acts done by a Canadian government or a person authorized by a Canadian government that would otherwise infringe copyright, when appropriate.

That the Crown exercise copyright protections that are reasonably in the public interest.

Recommendation 12

That the Government of Canada maintain the definition of “sound recording” under section 2 of the Copyright Act.

Recommendation 13

That the Government of Canada update the rules governing first ownership of cinematographic works in light of the digital age and in consideration of maintaining competitiveness in a global market.

Recommendation 14

That the Government of Canada consider amending the Copyright Act or introducing other legislation to provide clarity around the ownership of a computer-generated work.

Recommendation 15

That the House of Commons Standing Committee on Canadian Heritage consider conducting a study to investigate the remuneration of journalists, the revenues of news publishers, the licences granted to online service providers and copyright infringement on their platforms, the availability and use of online services, and competition and innovation in online markets, building on their previous work on Canada’s media landscape.

Recommendation 16

That the Government of Canada consider establishing facilitation between the educational sector and the copyright collectives to build consensus towards the future of educational fair dealing in Canada.

Recommendation 17

That the House of Commons Standing Committee on Industry, Science and Technology resume its review of the implementation of educational fair dealing in the Canadian educational sector within three years, based on new and authoritative information as well as new legal developments.

Recommendation 18

That the Government of Canada introduce legislation amending section 29 of the Copyright Act to make the list of purposes allowable under the fair dealing exception an illustrative list rather than an exhaustive one.

Recommendation 19

That the Government of Canada examine measures to modernize copyright policy with digital technologies affecting Canadians and Canadian institutions, including the relevance of technological protection measures within copyright law, notably to facilitate the maintenance, repair or adaptation of a lawfully acquired device for non-infringing purposes.

Recommendation 20

That the Government of Canada review section 29.21 of the Copyright Act to ensure that the creator of non-commercial user-generated content is not held liable for unintended copyright infringement.

Recommendation 21

That the Government of Canada monitor the implementation, in other jurisdictions, of extended collective licensing as well as legislation making safe harbour exceptions available to online service providers conditional to measures taken against copyright infringement on their platforms.

Recommendation 22

That the Government of Canada assert that the content management systems employed by online service providers subject to safe harbour exceptions must reflect the rights of rights-holders and users alike.

Recommendation 23

That the Government of Canada introduce legislation to amend the Copyright Act to facilitate the use of a work or other subject-matter for the purpose of informational analysis.

Recommendation 24

That the Government of Canada work with industry and relevant stakeholders to explore ways to support the production of works published in formats specially designed for persons with a perceptual disability, and to measure, on a yearly basis, the availability of works published in such formats.

Recommendation 25

That the Government of Canada make regulations to require notices sent under the notice-and-notice regime be in a prescribed machine-readable format.

Recommendation 26

That the Government of Canada examine ways to keep IPv6 address ownership information up-to-date in a publicly accessible format similar in form and function to American Registry for Internet Numbers’ IPv4 “WHOIS” service.

Recommendation 27

Following the review of the Telecommunications Act, that the Government of Canada consider evaluating tools to provide injunctive relief in a court of law for deliberate online copyright infringement and that paramount importance be given to net neutrality in dealing with impacts on the form and function of Internet in the application of copyright law.

Recommendation 28

That the Government of Canada introduce legislation amending the Copyright Act to increase upper and lower limits of statutory damages provided under sections 38.1(1), 38.1(2) and 38.1(3) of this Act to account for inflation, based on the years when they were originally set.

Recommendation 29

That the Government of Canada introduce legislation amending the Copyright Act to clarify that users can negotiate with a collective society as a group and to allow users to jointly apply to the Copyright Board of Canada, when the Board deems it appropriate.

Recommendation 30

That the Government of Canada report to the House of Commons Standing Committee on Industry, Science and Technology within three years on the effectiveness of the reform of the Copyright Board of Canada, including measures introduced and amended by the Budget Implementation Act, 2018, No. 2.

Recommendation 31

That the Government of Canada introduce legislation amending section 72(2) of the Copyright Act to ensure that the radio royalty exemption only applies to small, independent broadcasters.

That the Government of Canada make regulations to define “community systems” under section 72(6) of the Copyright Act in order to identify broadcasters to which section 72(3) of this Act applies.

Recommendation 32

That the Government of Canada evaluate the forms of statutory damages available under the Copyright Act to a collective society or a rights-holder who has authorized a collective society to act on their behalf where applicable royalties are set by the Copyright Board of Canada and the defendant has not paid them.

Recommendation 33

That the Government of Canada study the private copying regimes in place in other countries with a view to identifying the digital environment, the distribution of royalties flowing from the private copying levy, and the impact on consumers on which a private copying levy applies, including the impact of the private copying regime on the retail prices of the different types of digital device to which they apply.

Recommendation 34

That the Government of Canada evaluate the constitutional feasibility of establishing minimal standards in private agreements relating to a transfer of a right provided by the Copyright Act.

Recommendation 35

That the Copyright Board of Canada review whether provisions of the Copyright Act empower the Board to increase the transparency of collective rights management to the benefit of rights-holders and users through the tariff-setting process, and report to the House of Commons Standing Committee on Industry, Science and Technology within two years.

Recommendation 36

Given the important role of collective societies in the copyright framework and in the collective administration of rights, that the Government of Canada consider the benefits and mechanisms for increasing the transparency of collective societies, particularly with regards to their operations and the disclosure of their repertoire..

Dissenting Report from the Official Opposition Conservative Party of Canada on the Statutory Review of the Copyright Act

The report from the Conservative members of the committee contains two dissenting recommendations:

Recommendation 1

That the Government of Canada not follow recommendation 9 in the main report and do not seek to implement an Artist’s Resale Right in Canada.

Recommendation 2

That the Government of Canada introduce legislation amending the Copyright Act to completely abolish Crown copyright.

NDP Supplementary Recommendation

The supplementary recommendation from the New Democratic Party relates to Crown Copyright:

Abolishing the current all rights reserved system of Crown copyright would support Open Government principles and related initiatives.

From the Private Members’ Bill C-440 (Act to amend the Copyright Act (Crown copyright)) introduced in the 42nd parliament on April 9, 2019, the following clauses should be passed in legislation:

Section 12 of the Copyright Act is replaced by the following:

No copyright

• “Without prejudice to any rights or privileges of the Crown, no copyright subsists in any work that is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department.”

Copyright ceases to subsist

• “Without prejudice to any rights or privileges of 10 the Crown, any copyright subsisting in a work referred to in section 12 of the Copyright Act, as it read immediately before the day on which this Act comes into force, ceases to subsist as of the day of that coming into force.”

These changes would abolish crown copyright and reinforce Canada’s commitment to Open Government by making government works available for re-use without payment or permission and removes barriers to important work related to stewardship, scholarship, and journalism.

(Via House of Commons Standing Committee on Industry, Science and Technology)